Employer breaches agreement by limiting union site visits

UFCW site visits 'within acceptable limits': Arbitrator

When a union representative requested to visit a work site to wish members holiday greetings in December, he was denied access.

Jason Hanley, union representative for United Food and Commercial Workers Canada (UFCW), Local 175, wrote an email on Nov. 28, 2016, to Joan Nandlal, executive director of John Howard Society of Waterloo-Wellington in Ontario.

He wanted to schedule a visit to the organization’s three different sites on Dec. 16 in Kitchener, Cambridge and Guelph — all in Ontario — to “stop by and say hi and wish our members happy holidays.” Hanley had worked for

UFCW since March 2016 and he spoke with Nandlal via email regarding site visits.

In the past, Hanley and his UFCW predecessors had visited the sites on their own without alerting the employer, but Hanley testified: “She was told I had done a walk-around at Cambridge without the union steward. (Nandlal) asked me to let her know when I would be in the facilities. I did, we had a good working relationship.”

Beginning in September, Hanley sent email requests whenever he wanted to visit the three locations to greet workers and see if they had any concerns that could be addressed by the union.

Each time, Nandlal replied: “Fine,” to the requests, said Hanley, but on Nov. 30, Nandlal answered: “If you wish to do December site visits so soon after the November site visits that were on agency time, you are welcome to meet with staff after hours/outside of their regular work time (they will not be compensated for their time).”

Hanley repeated his request to visit the sites, but he was again denied by Nandlal. On Dec. 16, the union grieved the decision and argued the employer breached the collective agreement, specifically article 7.09, which said:

“Representatives may have access to the employer’s premises in order to investigate or assist in the settlement of a grievance and to regularly visit the employer premises to service the member’s needs. Such rights shall not be unreasonably withheld.”

But Nandlal testified about her refusal to allow site visits so soon after the November stopovers. “These didn’t need to happen on company time. He could meet with them after hours on employer sites,” said Nandlal.

However, the UFCW argued the article allows for the union to “regularly visit” sites meaning the frequency was not governed by any other language in the article.

Arbitrator William Marcotte agreed and ruled the collective agreement was breached. 

“I find the purpose of the visit falls properly within the provisions of art. 7.09. I find the employer’s decision to deny the union access was unreasonably withheld ,” said Marcotte.

Despite the employer’s argument that union visits disrupt workers, the amount of disturbance is minimal and well within acceptable limits, according to the arbitrator.

“When he does engage a member, he estimated those conversations lasted, at most, five minutes. In my view, given the nature of the work performed by bargaining unit members and Hanley’s conduct when he interacts with them, I find whatever disruption of work may occur, it conforms with the notion in the submitted awards of no undue disruption,” said Marcotte.

The time between the visits cannot be managed because there is no wording that restricts them, said the arbitrator. 

“These are not reasonable considerations for withholding consent. There is no restriction in art. 7.09 as to the ‘regularity or irregularity’ of union representatives’ visits,” said Marcotte. “Secondly, there is no restriction on the time when a visit can occur. There is nothing in the submitted awards to indicate union visits cannot occur during the working day.”

Reference: John Howard Society of Waterloo-Wellington and United Food and Commercial Workers Canada (UFCW), Local 175. William Marcotte — arbitrator. F. D. Carere for the employer. M. Jagodits for the employee. Feb. 5, 2018.

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